Affirmed; Opinion of April 27, 2006 Withdrawn and Corrected Memorandum Opinion filed May 16, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-04-00770-CR
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JEFFREY AARON REYES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Cause No. 892,494
C O R R E C T E D M E M O R A N D U M O P I N I O N
We withdraw our opinion of April 27, 2006 and issue this corrected memorandum opinion in its place.
A jury convicted appellant, Jeffrey Aaron Reyes, of murder and sentenced him to sixty years= confinement. In seven issues, appellant contends the trial court erred with respect to several evidentiary rulings and he received ineffective assistance of counsel. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.
I. Background
Appellant and the complainant, Carlos Martinez, were former high-school classmates. In October 2001, Savannah Kowalski, appellant=s girlfriend and the mother of his child, left him and began staying with Carlos=s family. On October 30, 2001, appellant persistently called Katherine Vick, Savannah=s friend, until Katherine admitted Savannah was staying with Carlos=s family. That night, appellant approached Carlos=s house several times and spoke with Rachel Martinez, Carlos=s mother. Each time, he asked for Carlos and was told he was not home. Appellant does not dispute that after he left the house the last time, he encountered Carlos on the street and shot him in the face with a shotgun causing his death. However, appellant gave different versions of the shooting in his written statement to the police shortly after the shooting and at trial.
In his written statement, appellant admitted that he laid in waiting for Carlos and shot him because he was mad, wanted Carlos dead, and wanted to Aget back@ at Savannah. In contrast, at trial, appellant characterized the shooting as self-defense. He testified that he was afraid of Carlos because Carlos had constantly picked on him at school. He went to Carlos=s house to look for Savannah and took a gun for protection. When he left the house, he passed Carlos on the street and hoped Carlos would not recognize him, but Carlos turned and approached appellant, so he pulled the gun out. Carlos raised his hand as if he planned to take the gun away, so appellant fired at his head. Appellant claimed he made his contrary statement to the police because he could not live with himself for killing Carlos and made himself look as bad as possible to ensure he would get the death penalty.
II. Evidentiary Rulings
In his first five issues, appellant challenges several of the trial court=s evidentiary rulings. We review a trial court=s decision to admit or exclude evidence under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). Unless the trial court=s ruling falls outside the zone of reasonable disagreement, we will not disturb it. Id.
A. Carlos=s Character
In his first issue, appellant contends the trial court abused its discretion by excluding evidence of Carlos=s character. The trial court granted the State=s motion in limine precluding appellant from mentioning that Carlos was on deferred adjudication for possession of a controlled substance at the time of his death. During appellant=s cross-examination of Rachel Martinez, he asked about her previous testimony that she was suspicious of appellant when he came to her house on the night of the murder:
Q. Now, when you were talking to the Prosecutor, you said [appellant] looked sort of odd because he was not the type of person who your son hung around with
. . .
A. Yes
Q. What type of people did your son hang out with?
A. Nicer looking, better dressed.
Q. Nice guys?
A. Yes.
Q. Because he was nice himself?
A. Yes, he was, very nice.
Q. People who don=t get in trouble?
The State then objected to Arelevance,@ and the trial court sustained the objection.
Appellant contends that Rachel left a false impression regarding Carlos=s criminal history, and thus, pursuant to Prescott v. State, Aopened the door@ to an inquiry into his criminal history. In Prescott, the Court of Criminal Appeals recognized that generally a witness cannot be impeached by a prior offense unless the offense resulted in a final conviction for either a felony or a crime involving moral turpitude and the conviction is not too remote in time. Prescott v. State, 744 S.W.2d 128, 130 (Tex. Crim. App. 1988); see Tex. R. Evid. 609. An exception to this rule arises when a witness, including an accused, leaves a false impression during direct examination as to the extent of her prior (1) arrests, (2) convictions, (3) charges, or (4) Atrouble@ with the police. See id. at 131. When the witness leaves this kind of false impression during her direct examination, she is deemed to have Aopened the door@ to an inquiry during cross-examination into the veracity of her testimony. See id. That inquiry may include the witness=s past criminal history that would otherwise have been irrelevant and inadmissible. See id.
However, Prescott generally applies when a witness leaves a false impression as to her own criminal history. See id. Here, Rachel did not leave a false impression as to her own criminal history. Appellant cites no authority applying Prescott when a witness leaves a false impression regarding the victim=s criminal history. Therefore, even if Rachel=s testimony that Carlos was Avery nice@ could be considered a false impression regarding his criminal history, her testimony did not invoke the Prescott exception. Accordingly, the trial court did not abuse its discretion by excluding evidence regarding Carlos=s criminal history. We overrule appellant=s first issue.
B. Statement by Savannah Kowalski
In his second and third issues, appellant contends the trial court violated his right to confrontation under the United States and Texas constitutions by admitting testimony from Katherine Vick regarding a statement by Savannah. During the State=s direct examination, Katherine testified as follows regarding a telephone call from Savannah after Carlos=s death:
Q. How did she seem whenever she called you? What was her reaction like? What was her demeanor like?
A. Hysterical, blaming me.
Q. How did you feel?
A. Upset
Q. Did she tell you that - -
[DEFENSE COUNSEL]: I=m going to object to hearsay, Your Honor
THE COURT: Sustained
Q. Did she seem to still be excited about something that had just happened?
A. Yes
Q. And was she - - you said she was hysterical. Was her hysteria, did it seem to be as a result of what had just happened?
[DEFENSE COUNSEL]: Your Honor, I would object that she can=t testify to that.
THE COURT: Overruled. You may answer the question, ma=am.
Q. Did she seem to still be excited? Whatever she was saying, was it about an event that had just happened?
A. Yes.
Q. Did she still seem to be under the influence of excitement of that event?
A. Yes.
Q. And what was it that she said to you?
A. She said, AJeffrey shot Carlos. Why did you tell? Why? Why? Why?@ Kept crying, kept crying.
Although appellant cites this entire dialogue, he apparently complains about admission of Savannah=s statement at the end of this exchange. However, appellant did not preserve error because he did not timely object. See Tex. R. App. P. 33.1(a). Earlier during this testimony, appellant objected to a question regarding a statement by Savannah as hearsay, and the trial court sustained the objection. When the State later asked again what Savannah said, appellant did not object. To preserve error, a party must object each time inadmissible evidence is offered unless he (1) obtains a running objection, or (2) makes an objection outside the presence of the jury to all the testimony he deems objectionable. Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003); Ross v. State, 154 S.W.3d 804, 811 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d); see Tex. R. Evid. 103(a)(1). Appellant did not obtain a running objection to statements by Savannah or make an objection outside the jury=s presence. Consequently, his earlier objection did not preserve error as to Savannah=s later statement.
Further, even if the earlier objection could be construed as timely with respect to Savannah=s later statement, appellant still failed to preserve error because the objection did not comport with the complaint on appeal. See Guevara, 97 S.W.3d 579, 583 (Tex. Crim. App. 2003) (recognizing that objection at trial must comport with complaint on appeal to preserve error). Appellant made a hearsay objection at trial but argues on appeal that admission of Savannah=s statement violated the confrontation clauses. A defendant waives a complaint that admission of a statement violated the confrontation clauses if he does not object on that ground at trial. See Oveal v. State, 164 S.W.3d 735, 739 n.2 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d); Bunton v. State, 136 S.W.3d 355, 369 (Tex. App.CAustin 2004, pet. ref=d). Moreover, a hearsay objection does not preserve error on a confrontation clause complaint. See Oveal, 164 S.W.3d at 739 n.2; Bunton, 136 S.W.3d at 368B69. Accordingly, because appellant has waived his complaint, we overrule his second and third issues.
C. Threats to Appellant
In his fourth issue, appellant contends that the trial court erred by excluding evidence of threats he received while in custody during the month before trial. Appellant does not dispute that he fled to Mexico over a year before trial while he was free on bond. He was subsequently arrested in Mexico and returned to custody before trial. At trial, appellant claimed that he fled to Mexico because he and his family had been threatened, and he presented evidence of threats made before he fled.[1] However, in response to the State=s relevancy objection, the trial court ruled appellant could not testify, or otherwise present evidence, that he received threatening letters while in custody during the month before trial.
Appellant contends the threats while he was in custody were relevant to rebut the State=s argument that his early flight to Mexico indicated Aconsciousness of guilt.@ According to appellant, the threats while he was in custody demonstrate that the earlier threats before he fled were Avery real.@ ARelevant evidence@ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401. Here, the fact Aof consequence@ at trial was not how serious the earlier threats were but whether appellant fled because he felt threatened. Therefore, the earlier threats were relevant to support appellant=s claim that he fled because he felt threatened. However, the trial court did not abuse its discretion by determining that alleged threats made more than a year after appellant fled were not relevant to his state of mind at the time he fled. Appellant=s fourth issue is overruled.
D. Autopsy Photographs
In his fifth issue, appellant contends that six autopsy photographs of Carlos=s body, Exhibits 31-36, were inadmissible pursuant to Texas Rule of Evidence 403.[2] Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. Tex. R. Evid. 403. Appellant contends that any relevance of the photographs was substantially outweighed by the danger of unfair prejudice and that several of the photographs were Acumulative.@
1. Unfair Prejudice
When determining whether the relevance of photographs is substantially outweighed by the danger of unfair prejudice, we consider the number of photographs, the size, whether they are in color or are black and white, whether they are gruesome, whether any bodies are clothed or naked, and whether the body has been altered by autopsy. Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002). In addition, autopsy photographs are generally admissible unless they depict mutilation of the victim caused by the autopsy itself. Id. at 816. Moreover, when photographs will help the jury to understand verbal testimony, such as the technical language used by a medical doctor in describing a crime victim=s injuries, a trial court does not abuse his discretion by admitting the photographs. Harris v. State, 661 S.W.2d 106, 107 (Tex. Crim. App. 1983).
Here, there are only six photographs at issue. One photograph is an x-ray image showing the pellets lodged in Carlos=s skull. The other photographs show the front of Carlos=s body from various perspectives. They range from close-ups of the shotgun wound to his face to more distant views of his face, torso, and abdomen. Of the two photographs that show the entire face, torso, and abdomen, one photograph shows Carlos unclothed, and the other shows him clothed with medical-intervention equipment still in place. The photographs are small snapshots, and only black and white copies are included in the appellate record.[3] The photographs were taken before the autopsy began and thus, do not show any alteration to the body resulting from the autopsy. The photographs were admitted during the medical examiner=s testimony and assisted her in describing the location and nature of the wound and the condition of Carlos=s body. Finally, the photographs are not overly gruesome. The shotgun wound is a round defect on Carlos=s left cheek, but the rest of his face is intact. Nonetheless, to the extent the photographs are gruesome because they show the wound, they are no more gruesome than the facts of the offense itself. See Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995) (recognizing trial court does not err merely by admitting gruesome photographs when the gruesomeness Aemanates from nothing more than what the defendant has himself done.@). After considering the appropriate factors, we conclude the trial court did not abuse its discretion by finding the relevance of the photographs was not substantially outweighed by the danger of unfair prejudice.
2. ACumulative@ Objection
Appellant also contends that several of these photographs, Exhibits 31, 33, and 35, were inadmissible pursuant to Rule 403 because they were cumulative in light of another photograph, Exhibit 32. Appellant contends the State could have used only Exhibit 32 to show attributes of the shotgun wound because all the other photographs also show the wound. However, Rule 403 does not prohibit cumulative evidence; rather it requires exclusion if the probative value is substantially outweighed by the Aneedless presentation@ of cumulative evidence. See Tex. R. Evid. 403. Although all of these photographs depict the wound, they depict different views of the body and the wound and were introduced for different purposes:
! Exhibit 31 shows the face, including the gunshot wound to the left cheek, and torso. The medical examiner used this photograph to point out the wound in general as a Arounded defect.@
! Exhibit 32 is a close-up photograph of the gunshot wound. The medical examiner used this photograph to show Ascalloping,@ which indicates the distance from which the gun was fired, and Asatelliting,@ which means one pellet separated from the others and caused a mark.
! Exhibit 33 is also a close-up photograph of the face taken from a different angle. This photograph partially shows the gunshot wound and shows an abrasion on the right cheek. The medical examiner used it to point out the abrasion.
! Exhibit 35 shows the face, torso, and abdomen. The medical examiner used this photograph to demonstrate that other than the head area, there were no wounds except a tattoo on the right arm.
Because the photographs at issue depict different views of the body and the wound and were introduced for different purposes, the trial court did not abuse its discretion by determining they were not needlessly cumulative. We overrule appellant=s fifth issue.
III. Ineffective Assistance of Counsel
In his sixth and seventh issues, appellant contends he received ineffective assistance of counsel in violation of the Texas and United States constitutions. To prevail on an ineffective assistance of counsel claim, an appellant must prove (1) counsel=s representation fell below the objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel=s deficiency, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). In considering an ineffective assistance claim, we indulge a strong presumption that counsel=s actions fell within the wide range of reasonable professional behavior and were motivated by sound trial strategy. See Strickland, 466 U.S. at 689 Thompson, 9 S.W.3d at 813B14; Jackson v. State, 877 S.W. 2d 768, 771 (Tex. Crim. App. 1994). To overcome this presumption, a claim of ineffective assistance must be firmly demonstrated in the record. Thompson, 9 S.W.3d at 814. In most cases, direct appeal is an inadequate vehicle for raising such a claim because the record is generally undeveloped and cannot adequately reflect the motives behind trial counsel=s actions. See Rylander v. State, 101 S.W.3d 107, 110B11 (Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 813B14. In the absence of a record explaining trial counsel=s actions, we should not find deficient performance unless the challenged conduct was Aso outrageous that no competent attorney would have engaged in it.@ Goodspeed v. State, No. PD‑1882‑03, __ S.W.3d __, __, 2005 WL 766996, at *2 (Tex. Crim. App. Apr. 6, 2005); Jagaroo v. State, 180 S.W.3d 793, 797 (Tex. App.CHouston [14th Dist.] 2005, pet. filed).
Here, appellant=s ineffective assistance claim is based on trial counsel=s failure to object to testimony of Houston Police Officer George Guerrero. When the State cross-examined appellant regarding the threats that allegedly prompted his flight to Mexico, he testified his family made multiple calls to the police to report telephonic threats and the police came to their home at least four times. The State later called Officer Guerrero as a rebuttal witness. He explained that police dispatch records show all complaints received by the police department and all dispatches of officers in response to complaints. He testified that the records for the relevant time period reflected only one complaint from appellant=s home regarding telephone harassment.
Appellant contends that his trial counsel was ineffective for failing to object to Officer Guerrero=s testimony as inadmissible under the confrontation clauses of the United States and Texas constitutions. However, other than generally stating that the testimony violated the confrontation clauses, appellant offers no argument or authority to show it violated the confrontation clauses. To demonstrate that counsel was ineffective, an appellant must identify the specific objection which should have been made and provide authority in support of his argument that the objection would have been meritorious. Mallet v. State, 9 S.W.3d 856, 867 (Tex. App.CFort Worth 2000, no pet.). Accordingly, appellant has not demonstrated that counsel was ineffective by failing to object to Officer Guerrero=s testimony as inadmissible under the confrontation clauses.
Appellant also contends that his trial counsel was ineffective by failing to object to Officer Guerrero=s testimony as hearsay. According to appellant, the testimony was hearsay because Officer Guerrero was neither the custodian of the police department records nor the officer who responded to the complaint. However, even if Officer Guererro=s testimony constituted hearsay, the record is silent regarding the reasons for trial counsel=s failure to object, and his failure to object was not Aso outrageous that no competent attorney would have engaged in it.@ Therefore, appellant has not overcome the strong presumption that his trial counsel=s actions fell within the range of reasonable professional behavior. See Goodspeed, __ S.W.3d __, 2005 WL 766996, at *2; Thompson, 9 S.W.3d at 813B14.
Moreover, even if his counsel were deficient, appellant has not shown there is a reasonable probability that, but for the deficiency, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Thompson, 9 S.W.3d at 812. According to appellant, Officer Guerrero=s testimony impeached appellant=s testimony, eliminated his claim that he fled to Mexico due to threats, and supported the State=s theory that his flight indicated Aconsciousness of guilt.@ However, by the time Officer Guerrero testified, the jury could have reasonably questioned appellant=s credibility because it had already heard the discrepancies between his statement to the police and his trial testimony. Thus, even without Officer Guerrero=s testimony, the jury may have reasonably doubted appellant=s claim that four threats were reported to the police. Further, although Officer Guerrero=s testimony rebutted appellant=s claim that four threats were reported to the police, his testimony actually supported appellant=s claim that the family received at least one threat. Consequently, Officer Guerrero=s testimony did not necessarily controvert appellant=s claim that he fled to Mexico due to threats.
Finally, even if the jury concluded the flight to Mexico indicated Aconsciousness of guilt,@ the jury heard significant other evidence that appellant murdered Carlos including appellant=s own statements. In particular, in his written statement, appellant admitted to the police that he laid in waiting for Carlos and shot him because he was mad and wanted him dead. Moreover, after giving this statement, appellant saw Savannah at the police station. He became very agitated, called her a Abitch,@ and said, AI told you you had better change your ways@ and AGood thing you weren=t there tonight, too, because I would have killed you, too.@ In addition, when appellant spoke with Katherine Vick before the shooting, he instructed her to tell Savannah to take care of their child. The jury could have rationally inferred from this statement that appellant planned to kill Carlos. Accordingly, appellant has not shown there is a reasonable probability that the jury would have reached a different verdict but for Officer Guerrero=s testimony. We overrule appellant=s sixth and seventh issues.
The judgment of the trial court is affirmed.
/s/ Charles W. Seymore
Justice
Judgment rendered and Corrected Memorandum Opinion filed May 16, 2006.
Panel consists of Justices Hudson, Frost, and Seymore.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] A friend testified that once when he and appellant were walking down the street, someone fired two shots towards them from a vehicle. Appellant=s mother testified that she received a telephone call threatening her family, including appellant=s baby, and she suspected that Rachel, Carlos=s mother, made the call. Appellant testified that he was threatened via telephone by a Hispanic male and by Rachel, he was threatened physically by a Hispanic male, and his son was threatened.
[2] Appellant also suggests that another photograph, Exhibit 37, was improperly admitted. However, Exhibit 37 is not a photograph of Carlos=s body, but is a photograph of Carlos=s clothing after it was removed from his body. Appellant focuses on the photographs of Carlos=s body and offers no reason that Exhibit 37 was improperly admitted under Rule 403. Consequently, he has waived any challenge to admission of Exhibit 37. See Tex. R. App. P. 38.1(h) (requiring that brief contain argument with appropriate citations to authorities); Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) (finding appellant waived appellate review of issue by failing to include argument and authorities).
[3] If appellant believed the colors in the actual photographs would have affected our assessment of prejudice, he should have ensured that the original photographs or color photocopies were included in the record. See Williams v. State, 958 S.W.2d 186, 196 n.10 (Tex. Crim. App. 1997).